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CASE NO.: Appeal (civil)  5194 of 2001

PETITIONER: Mahant Ram Khilawan Das

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 10/03/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 5194 OF 2001

TARUN CHATTERJEE, J.

1.      This is an appeal by special leave against the judgment and  decree dated 17th of October, 2000 of the High Court of Madhya  Pradesh at Jabalpur in Second Appeal No. 443 of 1994 whereby  the High Court had set aside the judgment and decree of the  Additional District Judge, Panna who in his turn had allowed the  appellant’s appeal against the decree of the trial court dismissing  the suit for declaration and permanent injunction filed by the  appellant. 2.      The case of the appellant is that a temple in the name               of "Shala Janki Raman Mandir’ in village Gadhi Padrariya and the  agricultural lands (in short "the suit lands") as fully described in  paragraph 1 of the plaint were owned by Mahant Ramdas, who was  the guru of the appellant, as Manager of the same. The temple and  the suit lands were bequeathed to the appellant by Mahant Ramdas  to succeed to the same as Manager. In the year 1987-88, the  Collector Panna started auctioning the suit lands and therefore, the  appellant filed a suit for declaration of title with regard to the suit  lands and also a decree for permanent injunction restraining the  respondent from interfering with the enjoyment and possession of  the same. The suit filed by the appellant was contested by the  respondent on the ground that the temple and the suit lands were  the property of the state and that Mahant Ramdas was appointed as  a priest and after his death, the appellant was appointed in his place  as the priest. It was further alleged that when the appellant sent a  resignation letter to the Collector, the same was accepted and  another person was appointed in place of the appellant as the  priest. Neither Mahant Ramdas nor the appellant owned the temple  or the suit lands, which were the property of the state and the Will  in question was a fabricated document, which was prepared to grab  the temple and the suit lands. The trial court dismissed the suit of  the appellant. Feeling aggrieved, the appellant preferred an appeal  before the Additional District Judge, Panna and the same was  allowed. Against this decision of the first appellate court, the  respondent filed a second appeal, which, as noted herein earlier,  was allowed. It is this judgment of the High Court which is  impugned in this appeal. 3.      While allowing the second appeal, the High Court had  framed the following substantial question of law: -  "Whether in the light of the admissions of the  plaintiff that his name does not find place in the  revenue records and that he was forcibly

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dispossessed by the Collector in 1987, the courts  below have committed an error in granting a  decree for declaration and injunction?  

4.      The learned counsel for the appellant contended, inter alia,  that the High Court had committed an error in as much as the  question framed by it was not a substantial question of law but in  fact only a question of fact and therefore, the substantial question  of law as framed by the High Court could not be treated as a  substantial question of law so as to interfere with the well reasoned  judgment of the first appellate court. It was also contended that the  High Court had based its judgment on the alleged admission of the  appellant ignoring the other documents and evidence already on  record on the basis of which the first appellate court had decreed  the suit of the appellant. This submission of the learned counsel for  the appellant was seriously contested by the learned counsel for the  respondent who contended that the High Court was fully justified  in reversing the judgment of the first appellate court and in  restoring the judgment of the trial court. 5.      Having heard the learned counsel for the parties and after  examining the judgment of the High Court as well as of the courts  below and other materials on record, we are of the view that the  High Court had not framed the substantial question of law properly  in the second appeal so as to interfere with the judgment of the first  appellate court. We are of the opinion that the question of law as  framed by the High Court was totally based on the alleged  admission of the appellant that his name did not find mention in  the revenue records and that he was forcibly dispossessed by the  Collector of the District. At the same time, even assuming that  there was an admission on the part of the appellant, before  reversing the judgment of the first appellate court, the High Court  ought to have considered the other material evidence on record on  which the first appellate court had based its findings. It is well  settled law that the entries in the record of rights raise a  presumption of possession and when the parties adduce evidence,  it is open to the court to come to a conclusion that the entries in the  record of rights in respect of the suit land were erroneous.  Therefore, even if there was alleged admission of the appellant that  his name did not find place in the revenue records, it would not  conclusively prove that the appellant had failed to prove his title to  the suit lands when there was ample evidence on record to prove  such title. So far as the question whether the appellant was forcibly  dispossessed in 1987, the same was a question of  fact, which  could not at all be taken to be a substantial question of law.  Therefore, in our view, the substantial question of law so framed  by the High Court was not a substantial question of law on the  basis of which the decision of the first appellate court could be  reversed.  6.      It is well settled that in second appeal, the High Court  should not substitute the findings of the courts below with its own  findings unless there is total absence of the consideration of  material evidence. [See Kondiba Dagadu Kadam Vs. Savitribai  Sopan Gujar [(1999) 3 SCC 722]. That apart, a perusal of the  impugned judgment of the High Court would show that practically,  the High Court had reversed the findings of the first appellate court  only on the alleged admission of the appellant to the extent that his  name did not find mention in the relevant record of rights in  respect of the suit lands. In our view, as noted herein earlier, even  if such an admission was made by the appellant, then also no  inference could be drawn that the appellant had no title to the suit  lands when, admittedly, the appellant had substantiated his plaint  case by production of enough material-documentary and oral on  record before the courts. It is also well settled that the entries in the  record of rights only raise a presumption that the person whose  name is entered in the record of rights is in possession of the suit

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lands but the same can be rebutted by adduction of evidence- documentary or oral on record. In the present case, as we have  already noted that the High Court, relying only on the alleged  admission of the appellant, had reversed the findings of the first  appellate court on the question of fact. However, from the findings  of fact arrived at by the first appellate court, it is clear that the  other material evidence on record would clearly show that the  presumption of the entries in the record of rights relating to the suit  lands was amply rebutted and the finding that the appellant had  title to the suit lands was amply proved. The first appellate court  had drawn an adverse inference against the respondent by coming  to a finding that the respondent had not adduced any evidence to  the effect that for doing an amendment in the Khasra or other  government records, the appellant or his Guru Baba Ram Dass  were given any notice under section 115 of the M.P. Land Revenue  Act and accordingly, it was held by the first appellate court that the  appellant before us was not bound those entries. So far as the  question of possession of the suit lands is concerned, the first  appellate court, which was the final court of fact, had made the  following findings: - "In addition to PWs of appellants, Angad Prasad  Panda (RW-3) and K.L. Paikray (RW-4) have  accepted on their cross-examination that appellant  was priest of the temple and till this day, he had  been cultivating the lands till the last 2 years back.  Appellant has stated in para No.3 of his statement  that he has been cultivating 30 acres of land and  remaining is left for cows and calves. The  respondent has not examined auction purchaser  Asha Ram Pujari. In the absence of his deposition,  the defence become baseless and contrary to it, the  presumption is that appellant is still doing puja of  the temple Shala Janaki Raman and upon his lands,  it is his possession."

Be that as it may, without coming to a positive conclusion on the  above aspect, we are of the view that the substantial question of  law was not properly framed and in that view of the matter, the  appeal needs to be allowed and the judgment of the High Court set  aside and the second appeal is remitted to the High Court for  framing a proper substantial question of law and after framing such  question, proceed to decide the appeal on merits on the evidence  already on record. Whatever observations have been arrived at by  us in this judgment shall be taken to be tentative and the High  Court would be free to decide the second appeal after framing a  proper substantial question of law. 7.      For the reasons aforesaid, the appeal is allowed to the extent  indicated above. We request the High Court to dispose of the  second appeal within a period of 6 months from the date of supply  of a copy of this order. There will be no order as to costs.